Friday, February 20, 2009

Nego Supositum: Carpio Is Barking Up The Wrong Treaty

The Supreme Court of the Republic of the Philippines (SCORP)  upheld the Constitutionality of the Visiting Forces Agreement, in a recent 9-4 En Banc ruling,  Nicolas v. Romulo (2009)   just as it did in the previous challenge nearly a decade ago, in Bayan v. Zamora (2000).   The controversy revolves about the following 1987 provision:
Transitory Provisions - Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
Justice Antonio Carpio dissents from the Majority Decision and disposes as follows:
In summary, the VFA fails to comply with Section 25, Article XVIII of the Philippine Constitution requiring the United States to “recognize as a treaty” the VFA. This Court cannot allow the implementation of the VFA by the Philippine Government unless and until the United States recognizes the VFA as a treaty. This means that the VFA must be ratified by the U.S. Senate and made part of U.S. domestic law in accordance with Medellin. Only when this process is completed can this Court allow the implementation of the VFA. In the meantime, the accused Lance Corporal Daniel Smith of the U.S. Armed Forces should be subject to the same Philippine laws governing an accused in similar cases, without the application of the VFA or its subsidiary agreements.

Accordingly, I vote to (1) DECLARE the Visiting Forces Agreement incomplete and ineffective and thus UNENFORCEABLE, and to (2) ORDER the Director-General of the Philippine National Police, as well as the Secretary of Foreign Affairs, to immediately cause the transfer of the accused Lance Corporal Daniel Smith from the custody of the U.S. Embassy in Manila to the New Bilibid prison in Muntinlupa pending final resolution of his appeal from conviction for the crime of rape.
The very heart of Justice Carpio's dissent lies in the SUPPOSITION that the Visiting Forces Agreement is the Treaty that allows the presence of US troops in the Philippines as required by the Philippine Constitution. 

Nego supositum!  I deny the supposition! -- as does J. Azcuna and the SCoRP majority when it ruled: 
[G.R. No. 175888] Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.[10]

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence “allowed under” the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence. 
In other words, it is the RP US Mutual Defense Treaty of 1952 that ALLOWS the presence of US troops on Philippine soil in Balikatan Exercises as "visiting forces."

All Justice Carpio has actually done is to establish that BY ITSELF the VFA as written would indeed be Constitutionally insufficient to allow the presence of US troops on Philippine soil.  But Justice Carpio with all due respect, is actually barking up the wrong treaty here!

I shall deal with the matter of "Medellin v. Texas" in a succeeding post...


Jun Bautista said...

With due respect, Dean, the RP-US Mutual Defense Treaty was adopted in 1951 while the present Constitution was adopted only in 1987. The treaty requirement on the presence of foreign military bases, troops, or facilities after 1991 is prospective. Clearly, the framers of the Constitution were not thinking of the Mutual Defense Treaty when they decided a treaty must be required for foreign troops presence on our land. The constitutional requirement is unequivocal and supersedes the Mutual Defense Treaty.

There is no argument that a treaty cannot be contrary to the Constitution. Besides, in CJ Puno's scholarly dissent, he cast a serious doubt as to whether the VFA could indeed be considered in implementation of the Mutual Defense treaty. Proponents of the VFA merely rely on the treaty's following wording:

"Parties separately and jointly by self-help and mutual aid will
maintain and develop their individual and collective capacity to resist armed

I doubt very much if such provision speaks of an authorization between the parties to craft agreements regarding jurisdictional issues over military personnel on their conduct on foreign soil.

DJB Rizalist said...

Jun Bautista,
Thanks for your comment, but do you consider 1987 Constitution as having abrogated the 1952 MDT?

SCoRP does not seem to think so and the VFA takes its authority not just from the MDT's provision that you quote, but as well from the entire Treaty's intention and purpose.

Mutual Defense Treaty.

I think this really covers whatever is "Necessary and Sufficient" for the purpose of maintaining and developing the Mutual Defense. Nothing more. Nothing less, including: "jurisdictional issues over military personnel on their conduct on foreign soil."

It is up to the Parties to decide if such a document is necessary to clarify what they are agreeing to do when they conduct for example military exercises and training together.

Mr. Justice Puno is entitled to his opinion, but the elected leaders of this country are responsible for policy decisions, not him! His job is to convince his colleagues of his position and to get the SCoRP to rule in the way he wants. If he loses, then his opinion is no more weighty than ours on this blog.

Jun Bautista said...

Dean, thank you for commenting on my comment. Without pretending to know better than the learned jurists of the SC (far from it), it is my humble opinion that the constitutional requirement in Sec. 25, Art. XVIII superseded the MDT. The wording of the Constitution is clear by requiring a treaty for the presence of foreign bases, troops and facilities after 1991. It should be noted that this is a transitory provision, which means it takes into consideration existing conditions upon its adoption. There was clearly no allowance made, save for the RP-US Military Bases Agreement, for existing agreements/treaties on foreign troops presence, etc.

The quoted provision of the MDT is the one relied upon by the Phil. gov't in saying that the VFA implements the MDT as a treaty-authorized executive agreement. Matters of jurisdiction over foreign troops is always a serious matter that should not be assumed; a treaty provision authorizing it should be unequivocal.

CJ Puno was not engaging in policy-making when he dissented to the majority. He merely asserted what he thought should be the legal interpretation of the constitutional requirement.

DJB Rizalist said...

All comments are welcome here. That is why we call it Philippine Commentary, hehe. So feel at home.

Regarding the provision on the presence of foreign troops, we must consider the fact that the Mutual Defense Treaty was much much more than about the presence of US troops. In fact, it was not primarily about that at all, but a pretty general treaty of mutual defense that establishes a major alliance for the two countries.

Even granting, for the sake of argument, that you are right and that the provision nullifies any previous arrangements and treaties that allow foreign troops, the RP cannot abrogate treaties in such an indirect and unspecific manner. It cannot escape the abrogation clause in those treaties, assuming that, as you assert, 1987 abrogated the MDT. At the very least, the RP govt was required to inform the US party that a new constitution had abrogated a long standing treaty that had survived even the 1972 Constitution.

But the RP has never given such notice. It has never come up in all other bilateral discussions regarding that Treaty, such as the run up to the VFA, during the Gulf War of 1990, and the Iraq War of 2003.

You are the only person, so far as I know, who has ever made this claim, that the 1987 Constitution abrogated the MDT.

I do not believe it did. Or else we would already have heard about it?

Jun Bautista said...

Welcome to the world of Blogs, Dean, where bloggers like us can make the craziest of claims (lol). Seriously speaking, I think this is a line worth pursuing vis-a-vis the discussion on any joint military exercises whether under VFA or any other agreement our gov't and the US or other countries can think of.

It is not something new that treaty obligations are abandoned or reneged by parties thereto, and surely it is also not impossible that a country's new constitution can have repercussions on its existing treaty obligations.

You are right that the MDT does not only provide for the presence of US troops in our country, but with the ushering of the 1987 Constitution any move toward the deployment of US troops in our country has to be covered with the necessary treaty, reason why VFA was entered into although it is now being claimed to be merely an executive agreement in implementation of the MDT to overcome the constitutional challenge that the US gov't has not treated it as a treaty. For me, the reasoning that the VFA is not the treaty but the MDT to support joint RP-US military exercises in the Philippines is but a fall back, if not an after-thought, position. As far as the Philippine gov't is concerned the VFA is a treaty for why else it submitted the same for concurrence of the Senate?

The MDT may not have been abrogated by the 1987 Constitution (probably my statement to that effect is too sweeping and needs correction), but my position remains: it cannot by itself authorize the presence of foreign troops, bases or facilities (and consequently, agreements on jurisdiction over military personnel). A treaty is necessary for this purpose - that should be recognized as a treaty also by the other contracting country. Which brings us back to the debate that the VFA is not a valid treaty for the presence of US troops in RP because as far as US internal law is concerned, it did not go through the process of becoming a treaty. Surely it could be an executive agreement, but a treaty? I don't think so.

The importance of the VFA being treated as a treaty by the US is not merely a matter of semantics as the majority in Nicolas would like us to think. As far as US law is concerned, a treaty occupies the same importance as federal laws; they are next only to the US Constitution in importance in the hierarchy of laws. But since the VFA was clearly only treated as an executive agreement by the US, it could be superseded by even older federal laws.

Once again, thank you Dean.

(BTW: is Dean part of your name or are you a dean in any university?)

DJB Rizalist said...

"Dean" is my first name, not a title. I was promoted at birth by a loving mother, hehe.

I understand the position you have taken. But let me present a hypothetical situation to test that position.

Suppose the Philippine Armed Forces want to invite the US Army Marching Band to perform a series of shows in the Philippines and perhaps mix it up with Filipino musicians in the AFP.

Clearly these are "foreign troops" whose presence in the Philippines is only allowed by a treaty duly recognized as such by both the US and RP.

Are you saying it requires a special instrument that will be ratified by the both the RP and the US Senates to make such a simple thing happen?

badmintonian said...

Well, I think it is a well-deserved promotion.

You asked a tough question which got me thinking. The question raises issues on the duration and purpose of stay of foreign troops in the Philippines. On the duration, although I do not fully agree with Bayan v. Zamora, it ruled that Sec. 25, Art. XVIII does not make a distinction between permanent and temporary presence of foreign troops. If we go by this the obvious answer to your question is yes, the situation you gave should be covered by a treaty under section 25. Interestingly, although not tackled in Bayan, section 25 does not also make a distinction on the purpose of foreign troops presence in the country. Needless to say, nothing prevents members of even a foreign military marching band, in the country for cultural or musical purposes, from committing a crime that will raise an international incident as Daniel Smith's case did. Any foreign military contingent in the country on an official visit will always raise possible issues of jurisdiction that only a well-crafted treaty could address to avoid complications.

The question, therefore, is not whether we should have visiting forces or status of forces treaties with our allies, but whether the treaties we conclude with them are fair and not lopsided.

There could be other situations, aside from your hypothetical scenario, that would be borderline issues, such as visiting foreign military personnel to attend a seminar or convention or other special functions, to receive an award of some sort,etc. I must confess, requiring treaties for these situations from time to time if only to satisfy the constitutional requirement seems impractical, if not ridiculous. But even these situations, however, could present the jurisdictional controversies referred to earlier. That is why we should have a comprehensive status of forces agreement or VFA, however we want to call it, with our allies with whom we expect regular exchanges and visits, to avoid these complications. As you know, visiting foreign military personnel on official status could invoke immunity for any crimes they may commit, which may not sit well with us.

Dean, how I wish you were in the 1986 Con-Com so that this issue you raised could have been tackled. I failed to see such discussion from our abstruse commissioners.

Jun Bautista said...

Please excuse the screen name badmintonian. I inadvertently used the screen name of my more relaxed and leisurely blog, hehe.